FACTS Mr Ali was employed by Birmingham City Council. On 25 April 2007 he handed in a letter of resignation due to “personal circumstances”. His evidence was that he was “under pressure, stressed out and couldn’t think straight and was not fully aware of what [he] was doing at the time”.
On advice from the council’s HR department, Ali’s manager offered him a cooling-off period. She asked him if he wanted to reconsider, but he reaffirmed his decision to resign. The manager left him for 20 minutes to reconsider. He then became upset and so was given a further 10 minutes. Ali then confirmed his decision to resign with immediate effect, which his manager accepted.
Two days later, he called the council, but was told that he had no automatic right to return. On Sunday 29 April, he e-mailed his manager saying he wished to return. On 4 May he was told “a decision has been made not to reinstate your contract and your resignation therefore still stands”.
DECISION Ali brought a claim for unfair dismissal. The tribunal held that it did not have jurisdiction to hear his claim as he had resigned rather than being dismissed. Ali appealed to the Employment Appeal Tribunal (EAT).
In general, an employer is entitled to treat unambiguous words of resignation as being effective. However, in Southern v Franks Charlesly, the Court of Appeal identified three ‘special circumstances’ in which an otherwise clear and unambiguous resignation should not be relied on. These were “an immature employee, a decision taken in the heat of the moment [and] an employee being jostled into a decision by the employer”. Where such special circumstances exist, “a reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can be properly assumed, then such enquiry is ignored at the employer’s risk”. At the EAT in Kwik-Fit (GB) Limited v Lineham, it was said that the appropriate period for the employee to change his mind was “likely to be a day or two”.
In any case, the EAT held that Ali’s actions did not fit within these ‘special circumstances’ identified in Southern. Ali had confirmed his wish to resign after 30 minutes’ reflection and so did not resign in the heat of the moment, a view which was supported by not asking for his resignation to be reconsidered until four days later. Even if special circumstances had applied, the four-day delay before notifying the council that he had changed his mind would have been too long.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
IMPLICATIONS The case serves as a useful reminder than, in certain limited circumstances, an employer should investigate further before accepting an apparently straightforward resignation. Here, a 30-minute period of reflection was enough to establish that the decision was not taken in the heat of the moment. Where, however, a resignation is made in the heat of the moment, the employee may be able to change their mind, if they do so quickly, and that will usually mean within a day or two.
Bob Cordran, partner, Thomas Eggar
